[OSM-legal-talk] license change effect on un-tagged nodes

Tue Jul 5 14:24:34 BST 2011

David,

My point was to note that being influenced by, being (somewhat) derived from and being a derivativer work are all different things. Period.

Additionally I wanted to describe an example where one mapper goes about and produces a simple yet copyrighted work (via arm-chair mapping) and then one (or more people both add the necessary details for the trace to actually become a useful map object _and_ they also change/finetune most of the object geometry (including quite possibly cutting the rd some places where there in fact isn't a rd etc). And I stated for _that example_ that the amount of copyright left (term most probably not existing) is next to nothing for the original tracer; escecially if/when one or more ppl have also used their collected gps traces + new imagery to tweak the geometry.
So, in the light of license change (or even copyright violations -- tracing originally from faulty sources) the fact that the 1st "creator" doesn't agree to the license anymore (or didn't have right to use the original source) will have gotten diminished (if that's any proper expression) at _some_ point.
Period.

Yes, theoretically there is some "creative input" left in the work, even some derivative, at least a touch of influence. And in practice some wonderful lawyer or a kind fellow mapper for that mapper could make a fuzz out of things, even sue.

But strongly think that:
(A) there wouldn't be a case. 
(B) the moral rights left would have been vanished at _some_ point.

So u ask: "What percentage of untouched nodes on a way would you consider safe to use when determining whether the way contains no copyright from the original mapper?"

I don't know. Perhaps 1.324%?

As per my description there isn't a formula ("at _some_ point"). Would b gr8 to have one but such doesn't exist.

And this is a (major?) part of why regardless of what I think of what is left of the actual copyright I also think -- as I think I wrote before -- that the community may well need to decide differently on the issue and I could well see myself supporting something stricter (if someone drags me into voting or otherwise casting an opinion on such a decision).

Cheers,
-Jaakko

Sent from my BlackBerry® device from Digicel
--
Mobile: +509-37-26 91 54, Skype/GoogleTalk: jhelleranta

-----Original Message-----
From: "David Groom" <reviews at pacific-rim.net>
Date: Tue, 5 Jul 2011 11:37:51 
To: Licensing and other legal discussions.<legal-talk at openstreetmap.org>
Reply-To: "Licensing and other legal discussions."
	<legal-talk at openstreetmap.org>
Subject: Re: [OSM-legal-talk] license change effect on un-tagged nodes

----- Original Message ----- 
From: "Jaakko Helleranta.com" <jaakko at helleranta.com>
To: "Licensing and other legal discussions." <legal-talk at openstreetmap.org>
Sent: Monday, July 04, 2011 8:42 PM
Subject: Re: [OSM-legal-talk] license change effect on un-tagged nodes

> On Mon, Jul 4, 2011 at 12:53 PM, John Smith <deltafoxtrot256 at gmail.com>
> wrote:
>
>> The position of nodes are often derived from the position of other nodes.
>>
>
> "Nothing of me is original. I am the combined effort of everyone I've ever
> known." (1)
> and hence the secret of
> "Creativity is knowing how to hide your sources" (2)
>
> On a more serious note:
> I think it's important to remember that there's a difference between
> (a) that the creation of something (B) has been influenced by something 
> else
> (A), even more directly impacted by A,
> (b) that B is derived from A, and finally,
> (c) that B is a derivative work of A.
>
> I was involved with publishing (student) song books (in Finland) when I 
> was
> younger and we needed to do some wrestling to get the publishing rights
> (without getting fined, not to mention take-down/pull-out demands) for a
> number of (student) songs the lyrics of which were not only clearly
> influenced by copyrighted song lyrics but were quite clearly derived from
> them.
>
> At the end of the day we couldn't publish one song which was deemed a
> derivative work but at the same time we were able to successfully get
> publishing rights for many because they were _not_ seen being derivative
> works even though there was a pretty clear link with many of them to the
> original song.
>
> In the mapping scene or any other international project there's obviously 
> a
> major difficulty in the fact that different countries laws / tradition 
> treat
> these issues differently. But the basics are nevertheless the same, I
> _guess_. Surely OSM can't rely on guessing so it makes sense to be safer
> than sorry. But it IMHO it doesn't make sense to try to be "holier than 
> the
> pope", so to say.
>
> But nevertheless _I_ would say that copyright/IPR-wise there's 0% left of
> anything protectable if (1) someone's e.g. traced a road from imagery, but
> has only marked it with, say, highway=road (meaning he states that he has 
> no
> clue of what kind of road/path/track/river?/ditch/wall/other it is) and 
> then
> (2) I go to survey the road with GPS, upload the trace (or even simply
> overlay it with existing data in JOSM) and then tweak the road according 
> to
> my trace+observations + tag it approriately. And I say that this holds 
> true
> even if I'd leave a few nodes untouched (because they happened to be where
> my trace was).
>

Leaving aside the legal / moral validity of the statement "I say that this 
holds true even if I'd leave a few nodes untouched (because they happened to 
be where my trace was)", there is a practical problem with your example.

In your example you give the reason the nodes were untouched as being  "they 
happened to be where my trace was".

In reality we wont know why these nodes were untouched.

They may have been untouched because:

(I) they happened to be where your trace was
(ii) they were simply missed when you did the tracing in the area of your 
GPX track
(iii) the way was a long way and some nodes were outside the area covered by 
your GPX track.
(iv) other reasons.

By virtue of the fact the node is untouched we know there will be no 
information attaching to the node to describe why its position was not 
moved, so we cant make any assumption about it.

> Now, surely some jack-ass lawyer could claim that a single (or the few)
> node(s) that I didn't touch creates a copyright violation and sue me. I
> could only say: please do.

I presume you are here refering to the copyright of the way containing the 
untouched nodes.

What percentage of untouched nodes on a way would you consider safe to use 
when determining whether the way contains no copyright from the original 
mapper?

Regards

David

>But I know s/he wouldn't. My work could very well
> be said having been derived (to an extent) from the original work -- but
> would certainly not be a derived work. (And someone may well disagree with
> that, and I appreciate that opinion. But I could bet my head on it.)
>
> Having said the above it's obviously a different thing that how OSM as a
> community wants to or even should handle various different situations
> regarding license change and dealing with data from non-complient sources. 
> I
> just wanted to note what I think holds very true; that there's a 
> difference
> between being derived from (to an extent!) and being a derivative work (as
> seen by law).
>
> Just my 2 cents,
> -Jaakko
>
> (1) Chuck 
> Palahniuk<http://www.goodreads.com/author/show/2546.Chuck_Palahniuk>
> (Invisible Monsters <http://www.goodreads.com/work/quotes/849507>)
> (2) Albert 
> Einstein<http://www.goodreads.com/author/show/9810.Albert_Einstein>
> (misquoated to him, it seems)
> --

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